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Fights against AIDS, sex traffic collide at high court

Richard Wolf, USA TODAY
6:42 p.m. MST April 21, 2013

Does requiring groups fighting HIV/AIDS to oppose prostitution violate the right to free speech?

The Supreme Court will hear arguments in a case Monday about a little-known provision in a 2003 law intended mainly to combat HIV/AIDS that requires most outside organizations that receive federal funds to have policies "explicitly opposing prostitution and sex trafficking."(Photo: ANDREW P. SCOTT, USA TODAY)

WASHINGTON — Two worthy goals come into conflict Monday at the Supreme Court: preventing the global spread of HIV/AIDS and discouraging the sex trafficking of women and girls.

President Obama and his predecessor, George W. Bush, say both can be achieved under a 2003 law that has invested billions of dollars in the battle. But they have lost twice in court already, and this may be their last chance.

At stake is a little-known provision in the law, intended mainly to combat HIV/AIDS, requiring most outside organizations that receive federal funds to have policies "explicitly opposing prostitution and sex trafficking."

The provision wasn't enforced at first because of concerns that it infringes on the right to free speech. It was put into effect in 2005 and immediately challenged by international aid groups on those grounds. They warned such proselytizing would backfire in parts of the world where prostitution and human trafficking are prevalent.

Lower federal courts agreed, and since the law's inception, more than $60 billion has been authorized for the fight against HIV/AIDS without the controversial policy being enforced. But the government is fighting back.

"Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives," the Obama administration argues in its brief. "Private entities that do not wish to comply with those conditions may avoid them simply by declining federal funds."

That's exactly the point, the challengers say. They fear that groups providing preventive health services in Third World countries might leave the program if forced to take a stand against prostitution or risk criminal prosecution.

"If compelled to adopt a policy explicitly opposing prostitution, respondents' work with this critical population could be compromised," their brief says. It's endorsed by scores of organizations, including many funded by the Bill and Melinda Gates Foundation and liberal philanthropist George Soros.

After the initial court battle, the government changed the policy by allowing groups to funnel their HIV/AIDS money through foreign subcontractors that would not have to comply. But the federal appeals court found it still violated free speech, and it has never gone into effect.

'A WORK OF MERCY'

The President's Emergency Plan for AIDS Relief — PEPFAR for short — was one of President George W. Bush's proudest achievements, and perhaps the only one that received wholehearted endorsement from Democrats. Upon signing it a decade ago, he called it "a work of mercy beyond all current international efforts to help the people of Africa."

The program authorized $15 billion over five years and sent most of the money to 15 countries, mostly in Africa but stretching from Haiti to Vietnam. In 2008, Congress tripled the funding to $48 billion through 2013.

Along with the Global Fund to Fight AIDS, Malaria and Tuberculosis, the effort has paid dividends. Nearly 5 million people in sub-Saharan Africa are getting AIDS treatment today. In 2003, only 50,000 were receiving antiretroviral therapy.

The battle against sex trafficking hasn't been as successful, despite passage in 2000 of the Trafficking Victims Protection Act. The practice is most widespread in Asian countries, such as India, Cambodia and Thailand.

Former secretary of State Hillary Rodham Clinton decried the enslavement of up to 27 million people when she released the government's annual report on human trafficking last year. "These victims of modern slavery ... remind us of what kind of inhumane treatment we are still capable of as human beings," she said.

Some human rights groups involved in the fight against human trafficking argue the two goals can work hand in hand.

"HIV policy is designed to protect men from disease rather than women from violence," says Norma Ramos, executive director of the Coalition Against Trafficking in Women. The message behind the policy, she says, is simple: "We will not fund groups that are supporting the sex industry in your country."

Ruchira Gupta, founder of Apne Aap Women Worldwide, has battled the sex trade in India for more than a quarter century. She contends that groups seeking wide distribution of condoms, including at brothels, to fight AIDS are inadvertently helping and legitimizing the prostitution industry.

'SEX WORK IS EVERYWHERE'

On the other side are groups such as Open Society Foundations, which promotes democracy, human rights and public health around the world, and Pathfinder International, which works on reproductive health services. They have been joined by umbrella organizations representing hundreds of international development agencies.

They note that prostitutes in Third World countries face much higher rates of HIV infection than others — a 12% infection rate globally, but more than three times that high in sub-Saharan Africa. A World Bank study found programs that work with them have averted nearly 11,000 infections among sex workers over five years, and nearly twice that many among the general population.

Zoe Hudson, a senior policy analyst at Open Society Foundations, says the abstract legal debate about prostitution should be secondary to the reality on the ground.

Groups like hers often partner with prostitutes rather than simply condemning the practice, she says. If the women feel marginalized or criminalized, they may not help fight HIV/AIDS — and groups working with them will fear losing federal funds if they continue.

"Sex work is everywhere. It is a brutal system. It is an exploitative system. Nobody thinks it's OK," Hudson says. "But simply calling for an end to something doesn't help us get there."